where the absent parties will not be affected by the application made to the Court. I merely throw this out without giving any opinion upon it, in order that the parties may consider what they will do.

*In the Matter of The ESTATE OF WILLIAM CLARK, *111 deceased, and

In the Matter of The COVENT GARDEN APPROACH, AND SOUTHWARK AND WESTMINSTER COMMUNICATION АСТ, 1857.

1864. July 29. Before the LORDS JUSTICES.

Gift by will to M. C. for life, and after her death to "all and every the children of the said M. C. who shall survive me: Held, to include children of M. C. born after the death of the testator.

THIS was an appeal from a decision of Vice-Chancellor KINDERSLEY, on the construction of the will of William Clark, dated the 27th of January, 1820.

This will was an elaborate and rather lengthily drawn instrument, evidently prepared by a professional man, and it was observed by the Vice-Chancellor that it was carefully framed, and that all the words used (unless the passage upon which the present question turned were an exception) were quite appropriate, and in the style of language used by conveyancers. The testator gave freehold and leasehold estates to trustees upon trust to permit his brother Thomas Clark to receive the rents during his life, and after his death (or in his lifetime with his consent) to sell the property. He gave his residuary personal estate to the same trustees upon the usual trusts for conversion. He directed the trustees to invest as therein mentioned the moneys arising from the sale and getting in of his real and personal estates. He directed his trustees to stand possessed of the trust moneys, and the stocks, &c., on which they might be invested, upon trust to pay the income to Thomas Clark, or his assigns, during his life, and after his death to pay, assign, or transfer one moiety of the trust fund to Thomas Clark

the younger, the reputed son of the testator's brother 112 Thomas Clark; but in case Thomas Clark the younger should die before attaining twenty-one, without leaving lawful issue him surviving who should live to attain that age, then the testator directed that his interest should be divested, and that the trustees should stand possessed of the same moiety upon trust to pay the income to Maria Clark, the reputed daughter of the testator's brother Thomas Clark, for her life, for her sole use, and as an inalienable provision for her in the same manner as was thereafter declared concerning the income of the other moiety," and from and after her decease to pay, transfer, and assign the same moiety, half part or share of and in the said trust moneys, stocks, funds, and securities, and the produce thereof, unto and between and among all and every the child and children of the said Maria Clark, in the same manner, and not absolutely, at the like ages as hereinafter mentioned with respect to the other moiety, and not before, and subject thereto, upon trust" to assign the moiety to Thomas Clark, the brother, his executors, administrators, and assigns. The testator then, as to the other moiety, directed the trustees to pay the income to Maria Clark for her separate use during her life, with a restraint on anticipation, and after her decease," then upon trust to pay, assign, or transfer the said lastmentioned moiety, half part or share of and in the said trust moneys, stocks, funds, and securities unto the child, if but one, or if more than one, unto and between and among all and every the children, of the said Maria Clark, who shall survive me, equally to be divided between them, if more than one, share and share alike as tenants in common; such child or children to be absolutely vested [sic] at their respective age or ages of twenty-one years, with benefit of survivorship or accruer, as to the original and accruing shares of such as shall die under that age, in favour of the other child or children, the accruing shares to vest at the *113 same age. And in case there shall be no child * of the said

Maria Clark, who shall survive me, and live to attain the age of twenty-one years, then upon trust" to assign this moiety to Thomas Clark the younger absolutely, with a gift over, in the event of his dying under twenty-one without leaving lawful issue him surviving who should attain that age, to Thomas Clark, the testator's brother, his executors, administrators, and assigns.

The testator died shortly after the date of his will, which was proved in June, 1820.

Thomas Clark the younger attained twenty-one in the year 1827, and died intestate and without issue on the 31st of January, 1831. Being illegitimate, he left no next of kin, and letters of administration to his estate were taken out on behalf of the Crown.

Maria Clark was about twelve years old at the death of the testator. She married in July, 1829, and there were seven children of the marriage, four of whom attained the age of twenty-one years. She died in 1864, leaving these four children surviving her. Thomas Clark the elder, the tenant for life, had died in 1833.

In 1862, the Metropolitan Board of Works took under their statutory powers part of the testator's real estate which had not been sold, and the purchase-money, 1850l., was paid into Court. The four children of Maria Clark now petitioned that one moiety of this sum might be divided among them, and the other moiety paid to the solicitor of the treasury, as administrator of Thomas Clark the younger.

Upon the petition coming on to be heard, the Crown claimed the whole fund, on the ground, that as Maria Clark had no child. living at the death of the testator, * the gift over of her 114 share to Thomas Clark the younger had taken effect.

Vice-Chancellor KINDERSLEY, before whom the petition was heard, said, that the expression "who shall survive me" must, according to the proper use of the words, apply only to children born in the lifetime of the testator who should outlive him, and that to construe it as meaning "such children as shall be alive after my death" was to attribute to the word "surviving" a strange and inappropriate sense, which could not be done, unless there was something in the context necessarily leading to the inference that the testator did use it in that sense. His Honor thought that the difference of wording in the dispositions of the two moieties in favour of Maria Clark's children was against the case of the petitioners, and that there was no context to alter the meaning of the words. It did not appear that the testator was expecting speedy death when he made his will; he might therefore think it probable that Maria Clark would have children in his lifetime. The disposition was capricious, but his Honor could not see any ground upon which the Court could proceed to construe it as contended by the petitioners.

His Honor accordingly decided in favour of the title of the Crown to the whole fund.

The petitioners appealed.

Mr. Baily and Mr. Hallett, for the petitioners, in support of the appeal.—The Vice-Chancellor's construction gives a most unnatural effect to the will, and ought not to be adopted without necessity. It is most unlikely that in making a disposition in favour of the children of a girl twelve years old, he should intend * 115 none to take, except those * who were born in his own lifetime. The word "survive" strictly means to live after. Johns. Dict. "Survive."

Mr. Wickens, for the Crown. The common meaning of the word "survive" is confined to persons living at the period to which survivorship is referred, and no instance can be produced in which the word is used in any other sense. The argument founded on Maria Clark's age is sufficiently answered by the Vice-Chancellor. It is true that the disposition is peculiar, but the words are clear in themselves, and there is no context showing that the testator used them any other than their proper sense.

in

THE LORD JUSTICE KNIGHT BRUCE. I am of opinion that we may without impropriety hold the words "who shall survive me" to mean "who shall be living after me;" and I am not sure that this is not their strictly correct meaning. In my judgment, therefore, the appellants are entitled to a moiety of the fund.

The Lord Justice TURNER concurred.

[88]

*HOPGOOD v. ERNEST.

1865. June 30. July 1, 15. Before the LORDS JUSTICES.

*116

The plaintiff having agreed with E. to advance him money on mortgage, the plaintiff's solicitor sent the mortgage-deed to W., the solicitor of E., to obtain its execution. W., who was also the solicitor of K., sent by his clerk the plaintiff's mortgage-deed, and also a mortgage of the same property from E. to K., for execution by E. E. signed the plaintiff's deed before K.'s, and gave both at once to the clerk, saying, "That is my delivery." The titledeeds were handed to the plaintiff, when he advanced his money, he having no notice of the transaction with K.: Held, by the V. C. WOOD, that the delivery of the two mortgage-deeds was cotemporaneous; that they took effect at the same instant; that the plaintiff and K. were tenants in common or joint tenants of the legal estate, and that their mortgages were payable pari passu.1

Held, on appeal, that assuming this decision to be correct as to the legal estate, still K. must be postponed to the plaintiff, because the title-deeds had been delivered to the plaintiff without any notice of K.'s title, and without K.'s asking after the deeds or making any claim to them, and that assuming her, by reason of W.'s committing a fraud, not to be affected with notice of the plaintiff's title through W.'s knowledge of it, she still must be affected by his negligence in not asking for the deeds.*

THIS was a motion by way of appeal from a decision of ViceChancellor WOOD, who had refused a motion to vary the chief clerk's certificate, finding that a mortgage belonging to the plaintiff and his co-trustee, and a mortgage belonging to the defendant Frances Kemp, ranked pari passu.

In October, 1855, the defendant Ernest mortgaged an estate to Robert Govett and others in fee for 12,000l., C. A. Govett acting as solicitor for the mortgagees. In 1857, Ernest gave notice to the mortgagees, through Williams his solicitor, of his intention to pay off the mortgage. Not being able to procure the money in time, Ernest applied to the Law and Equity Insurance Company, who advanced him 13,000l. The estate was thereupon reconveyed to

1 See 2 Sugden V. & P. (8th Am. ed.) 727 in note (c'); Hatch v. Haskins, 17 Maine, 391; Jones v. Phelps, 2 Barb. Ch. 440; where two mortgages were recorded at the same time.

* See 2 Dart V. & P. (4th Eng. ed.) 794; Kerr F. & M. (1st Am. ed.) 140, 141, 250, 251; 2 Sugden V. & P. (8th Am. ed.) 767 et seq.; Atterbury v. Wallis, 8 De G., M. & G. 454.